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Domain Holdings, has become the latest member of The Internet Commerce Association (the ICA) which is a trade group that represents and protect domain name holders and those with interests in the domain business. Domainholdings.com has entered the ICA as a silver member which requires a annual contribution of $5,000-$9,999 I reached out to Alan […]

The Internet Commerce Association (ICA) announced today that it passed a resolution (Here is the full Resolution) which changes its membership structure, adds a new Board Positions & changes the voting procedures for members of its Board. Under the resolution the new levels of membership are as follows: Platinum members are for those individuals and/or […]

Overnight I received a notice that several domain names I owned were transferred by a sealed court from Verisign without notice and of course without the court order. The domain names just were transferred by Verisign to another domain and are now listed for sale at another marketplace. Another domainer sent me an identical notice […]

As we told you on Sunday, some including thedomains.com felt that the portion of Mr. Corwin’s post that seemed to be a personal attack on Mr. Negari was inappropriate and out of line.

Mr. Corwin has now addressed this, with a statement posted on the ICA Website in which he apologize to Mr. Negari entitled “Personal Clarification Regarding .XYZ Article”

Here is the new post:

Several days ago I posted an article – “ICANN is Missing in Action on .XYZ” – expressing my personal views regarding Network Solutions’ involuntary opt-out registration of .XYZ domains for its existing customers. It was posted, as many of my opinion pieces are, at both the website of the Internet Commerce Association, which I have served as Counsel since its founding in 2006, and at CircleID.com; the two websites attract different audiences. The article was not requested by the ICA and does not represent any official policy of the ICA in regard to such involuntary domain registrations. The ICA has not yet adopted any position on this practice.

The article questioned whether this opt-out practice violated registrant rights and was in compliance with the Registrar Accreditation Agreement (RAA) that all registrars enter into with ICANN. A particular concern was that, unless ICANN stepped in, this practice could spread to other new gTLDs, adversely affecting registrants while undermining the integrity of the new gTLD program and raising additional questions about ICANN’s contractual compliance enforcement.

Toward the end of the article I referred to a 2011 Lanham Act litigation filed by Facebook against the CEO of the .XYZ registry, Daniel Negari, and another company he headed, Cyber2media. I noted that the case had been dismissed, and stated “Of course allegations are not proof of guilt”. I also tried to give even-handed treatment earlier in the article on the question of whether .XYZ had entered into any arrangement with Network Solutions in regard to the opt-out program by reprinting the relevant text of an interview he had engaged in on that question.

I now regard my referencing of the Lanham Act litigation as a mistake in judgment.

First, it was extraneous to the main focus of the article and has generated some unintended controversy that has diluted focus on the important policy question of whether opt-out domain registrations are an ethical practice consistent with RAA provisions that protect registrants and, if not, what ICANN should be doing in reaction.

More importantly, it appears to have created the misimpression that I believe that the award of the .XYZ registry contract to Mr. Negari and his registry enterprise was questionable. I am not aware of any facts that would lead me to such a conclusion and to the extent that my unartful words may have created such an incorrect impression I offer my sincere apology to him, his colleagues and his enterprise.

That section of the article also stated that it “would be useful to know” whether the application for .XYZ had disclosed the litigation. I have since learned through a third party that it was disclosed and considered by ICANN. Such information is redacted and not made part of the publicly available portion of any gTLD application.

At Section 11(g) of the Applicant Background portion of that document this Question appears:

(g) Disclose whether the applicant or any of the individuals named above has been involved in any administrative or other legal proceeding in which allegations of intellectual property infringement relating to registration or use of a domain name have been made. Provide an explanation related to each such instance. (Emphasis added)

This Note appears next to that Question:

ICANN may deny an otherwise qualified application based on the background screening process. See section 1.2.1 of the guidebook for details.

That provision is the very reason why a dismissed Lanham Act lawsuit would need to be disclosed by a gTLD applicant. It is in addition to preceding Section 11(f), the inflexible “three strikes” UDRP/ACPA disqualification clause against which I lobbied at considerable length; while that effort was unsuccessful, a similar disqualifier was added for those cited for repeated Reverse Domain Name Hijacking. ICANN has stated that it intends to conduct a thorough review of all provisions of the Applicant Guidebook prior to any second round of new gTLDs, and that will provide an opportunity to revisit all these provisions.

I hope that this clarification facilitates a return to consideration of the opt-out registration issue and an appropriate ICANN response. I wish Mr. Negari and his marketing team well in their efforts to promote affirmative domain registrations in the .XYZ registry.”””

Ron Jackson wrote two stories at DnJournal.com, over the weekend covering a post written by Phil Corwin, that post was published on Circle ID and on the ICA website on Friday entitled ICANN is MIA on .XYZ, and its subsequent removal on Saturday from the ICA website.

I’m not going to rehash what Ron wrote, As not surprisingly he laid out the issues very well.

The issues of the moment, as you can read in Ron’s post, include whether or not the post should have been published on the ICA website, whether the post should have been removed in the way it was removed, whether Mr. Corwin had any ulterior motives to write the post and whether the ICA is going to comply with demands made by Mr. Negari which appear below.

I have some additional information including some quotes from Phil Corwin and some thoughts on the post and the ICA’s action removing the post.

First I need to say for those that don’t know that I’m a long time member of the ICA at the Silver level. I’m not a member of the ICA board.

The ICA like any other organization takes input from its members and the Board makes decisions. I can say that none of the information I’m going to share with you came to me as a member of the ICA as of the time of this publication. I haven’t received anything from the ICA about this issue as a member at all.

As you can see from the comments on CircleID.com, some in the community objected to a portion of Mr. Corwin’s post, which chatted about a case that the principal of .XYZ, Mr. Negari was named in a few years ago. Mr Negari and his company were dismissed from that case. Mr. Berryhill was among the commenters who felt that any other details outside the XYZ/Netsol issue were nothing more but a personal attack. Those comments also raised the question if Mr. Corwin had other motives for writing the post outside of the XYZ/Netsol issue.

Here is how Ron Jackson described the issue:

“The passage in question was not about the Network Solutions issue with .XYZ registrations, but Corwin’s question whether or not ICANN was doing thorough enough background checks on new gTLD registries and their top executives. In that passage he noted that Daniel Negari, the CEO of the .XYZ, along with his company Cyber2media, had been defendants in a lawsuit filed by Facebook in 2011 – a lawsuit that was later dismissed. In the comment section, John Berryhill, one of the world’s top domain attorneys, took issue with Corwin citing a dismissed action as cause for suspicion, calling it a “personal smear.”

To illustrate his point, Berryhill took it a step further, noting that Corwin’s firm, Greenberg & Lieberman, is defending a client who is being sued for breach of contract by a company associated with Negari (a case involving non-payment for the domain MD.org which had been sold for over $555,000) and that “This personal smear likely has more to do with Mr. Corwin’s deadbeat client, than internet policy.”

Regarding the post itself, I personally didn’t have any issue with the portion of the post where Mr. Corwin chats about .XYZ/Netsol issue and calls on ICANN to take a look to see if it conforms with their rules and regulations, but in my opinion Mr. Corwin’s post should have stuck to that issue of Netsol stuffing free .XYZ domains into some of its customers accounts without the customers confirmation.

I do believe the portion of the post that is being called by some a personal attack on Mr. Negari, were very inappropriate.

Now for the rest of the story

Mr. Negari in an email sent Saturday morning asked the Directors of the ICA whether the views expressed in Mr. Corwin’s article posted on the ICA’s Website reflected the position of the ICA, the Board and its members.

DN Journal reports Nat Cohen, one of the three Board members of the ICA “decided to take the copy of the letter on the ICA site down today until the board could meet as a whole and “review the article in more detail before we adopt it as an official ICA position”.

However the email he sent to Mr. Negari on Saturday when he took down the post from the ICA Website, was quite different from how he described it to DnJournal.com,

Here is the email sent by Nat on behalf of the ICA to Mr. Negari:

“Phil wears many hats. The ICA is one of a number of his clients.

Phil wrote the Circle ID article on his own initiative, as an expression of his personal views, and without consultation with the ICA board. I was not aware, and I don’t believe any of the other ICA board members were aware, of the content of the article until after it was published.

The article was not published at the direction of the ICA board. The article does not convey the views of the ICA.

Phil’s byline on the Circle ID article states that the views in the article are his personal views, and does not indicate any affiliation with the ICA.

Phil has the ability to post articles directly to the ICA’s website. He published the article on the ICA website without prior review from anyone at the ICA. I had not read the article in full until John Berryhill wrote last evening expressing objections to the article.

The article has now been removed from the ICA website.”

I think we can agree that the actual letter sent to Daniel on behalf of the ICA reads to be a final determination of the ICA and not in accordance with how the ICA’s position was described in the DN Journal story.

That’s a problem for me as a member of the ICA.

Nat as one member of the Board in my opinion doesn’t have the authority to take actions unilaterally on behalf of the organization, including taking down the post and sending out a letter which purports to represent the position of the entire organization with what appears to be a final decision.

As a member I have a problem with that.

Mr. Corwin also sent a copy of the post, including a link to the post, not the one published on CircleId, but the post published on the ICA’s website, to all members of the ICANN Business Constituency.

The email was sent from Mr. Corwin’s own address not from an ICA email, and besides repeating the post and linking to the article to the one that appeared on the ICA’s website only added the following

“FYI. I think BC members will find this very interesting – and somewhat disturbing….””

I think the letter should have linked back to the CircleId post, not the post as it appeared on the ICA website.

I reached out to Mr. Corwin, for some comments on the post and the surrounding issues.

Mr. Corwin had this to say:

“What I blog about on the ICA website is my personal view, it is not the official positions of the members of the ICA or the board of the ICA, unless it clearly says so in the post. “I have never in the past received any negative feedback on a post I have written on the ICA website from an ICA board member or any other member. Ron Jackson over at Dnjournal.com posted a very complimentary post yesterday, on my post that also appeared on CircleID and agreed that ICANN needs to look at this NSI opt out registration issue which is the subject of the post”

Phil, I have a copy of a letter that was sent to at the very least, all the members of the BC, this was sent from your personal business email address that had the link to the post from ICA site not Circle ID. Is that something you typically do, send an email out to the BC about a post you make on the ICA website?

“When I write a post that I think will be of interest to the members of the BC I send it as an e-mail as a matter of course. I also forward other articles that I think will be of interest. I have long been ICA’s representative on the BC. The issue I wished to bring to their attention were the thousands of involuntary domain registrations and the lack of any visible ICANN response”

“”The ICA has long had the mission to protected the rights of registrants and the principal issues discussed in the post, protecting registrants and upholding the RAA are very relevant issues for the ICA. That’s why I thought it was suitable for a blog post. “

Phil how do you respond to what some are speculating, and commenting in the Circle ID post, that your post was motivated by clients the firm of Greenberg & Lieberman a law firm in which your “Of Counsel”, which are representing clients who are defendants in a litigation with Mr. Negari in a different matter?

“That is outrageous and false”

“I’m Of Counsel and have no management role in the firm, I don’t know all of the clients or activities of Greenberg & Lieberman and have no reason to.

I had no idea they were representing anyone in any litigation with Mr. Negari

I had no prior knowledge of the lawsuit, the article does not mention or discuss that lawsuit, and I would never use the ICA website to post material for the purpose of influencing extraneous litigation.

I write about issues that I believe are of interest to ICA members and domain investors”

Do you have any plans to remove or edit the post on circle ID?

“The CircleID post has already received 1500 views and Mr. Berryhill and others have posted comments, some of which are highly critical, so I don’t think that is a practical option at this point in time. I have just posted a brief response to some of the comments. Again, my main focus was on Network Solutions’ involuntary opt-out domain registrations and whether that was in violation of the RAA and required ICANN intervention, and I hope any further discussion can return to that issue.”

Well honestly so do I.

But at the moment there is an outstanding demand letter that Mr. Negari sent to the ICA after receiving the email from Nat acknowledging the removal of the post:

At this point their has been substantial damage done to ICA’s reputation, as well as mine personally. I am expecting ICA to issue a statement covering the following, Phil acted on his own and not on behalf of ICA

Post that statement on ICA’s website, Circle ID, ICANN business constituency newsletters, board newsletters, essentially with the same promotion it had originally to try and restore the reputation of ICA and myself.

Again I appreciate your transparency and swift reply, I don’t read the blogs every day; however this one was way out of line and crossed many boundaries. “””””

So I’m not sure where all of this is going.

Much of this was very quite unnecessary and is going to be a distraction from the NetSol issue.

Obviously the Board of the ICA is going to have to meet and discuss what happened here and figure out if they are going to meet any or all of Mr. Negari demands.

A slight change of one word could open the door for domain registrant rights to evaporate over time. Currently ICANN is looking at a Preliminary Issue Report on Access by IGOs (Inter Governmental Organization )and INGOs (Inter Non Governmental Organization) to the Curative Rights Protections of the UDRP and URS. You can read all the comments here.

The Intellectual Property Constituency (“IPC”) of the Generic Names Supporting Organization (“GNSO”) would like to see the language changed when it comes to UDRP and URS disputes which involve an IGO or INGO.

They would like to see the substitution of the word “or”instead of “and” in a “bad faith registration or use” element.

Two of the great champions of registrant rights, Nat Cohen and George Kirikos left excellent comments on why this should not be allowed.

Nat Cohen touched upon the common sense fact that there are many companies and organizations who have the same rights to a domain name using their acronym.

Thank you for the opportunity to comment.

I reiterate my statement that IGOs/INGOs are not entitled to any special protections for their acronyms, as they have no greater claim to an acronym than any of the hundreds or thousands of other legitimate users of those acronyms. This is an illegitimate attempt to create a special protected class where none exists already and without any authority to do so.

The proposal to reserve commonly used acronyms for IGOs and INGOs in established TLDs is a tremendous overreach by International Organizations. In essence, the organizations are claiming all the IP rights to short acronyms that are in widespread commercial use by a entities around the globe. These international organizations have no greater claim to these acronyms than any other legitimate user.

International organizations have available for their use .int and .org extensions that are associated with International Organizations and non-profit organizations. There is no need to seize turf on what is traditionally the commercial internet of .com and .net by claiming exclusive rights to acronym domains under these extensions.

Many of the organizations in the list of acronyms under consideration for special protections are obscure and their acronyms are not well known to the public. There is no basis or justification to privilege the interests of the Int’l Organizations over other users of these acronyms. This is a strikingly misguided initiative that takes a well grounded interest in avoiding confusing misuse of the names the world famous organizations, the Red Cross and the Olympics, to launch a groundless seizure of all domains associated with the acronyms for hundreds of international organizations.

There is a very good reason why historically the protections afforded to the Red Cross and the Olympics are restricted to these particular organizations that are well known to hundreds of millions of people worldwide. The rationale for the special protections for these two organizations does not extend to every obscure international organization ever created, and certainly not to acronyms that these organizations share with hundreds or thousands of other entities.

By way of example let us take a look at some of the acronyms used in the text of the Overview of the Report and the use made of the dot-com domain based on those acronyms-

This small example demonstrates that acronyms have many concurrent legitimate uses. IGOs can adequately protect their intellectual property and reputations without adopting a policy that prevents the long-standing and legitimate use of acronym domains by commercial users.

First, I’d like to note that the “reply comment” submitted by the Intellectual Property Constituency was late, i.e. Tue, 6 May 2014 20:11:48 -0400 is equivalent to Wednesday May 7, 2014 00:11:48 UTC, which is 11 minutes and 48 seconds past the deadline.

Their comments should *not* be considered (if their comment is considered by ICANN, so should other “late” comments, including this one). In particular, the IPC’s longstanding desire to change the UDRP and URS from one designed for the “clear cut cases of abuse” by changing the “and” requirement to a lesser “or” standard is obviously unacceptable, and against the public interest. The cases of “or” are best left to the national court system, where full due process exists (including cross-examination, discovery, etc.), not the UDRP/URS where very limited evidence is presented under extreme time constraints.

It’s inconsistent for the IPC to simultaneously argue for a “narrow” focus of any PDP (no PDP at all should take place, as we’ve argued in prior comments), but then try to broaden that focus by reopening the “and” vs “or” debate.Clearly they have an ulterior motive at work, namely trying to reopening the “and” vs “or” requirement for non-IGO/INGO complainants, using the cases of IGOs/INGOs as a “foot in the door” if that policy was developed in a haphazard process focused on “speed” rather than a process focused on careful and thoughtful consideration.

Sincerely,

George Kirikos

It is easy to see where this headed, set a precedent on the and vs or with just the IGO and INGO in mind, and then slowly let it filter out into the mainstream where big companies are using it against domain investors etc…

Phil Corwin of the ICA has sent a comment to ICANN regarding the Preliminary Issue Report on Access by IGOs and INGOs to the Curative Rights Protections of the UDRP and URS. In that report, the staff recommended the GNSO Council initiate a PDP (Policy Development Process) to see if they should modify the UDRP […]

Phil Corwin of the Internet Commerce Association (ICA) has been appointed to the serve on the Internet Committee of the International Trademark Association (INTA) for a two-year term commencing in January 2014

International Trademark Association (INTA) is the largest group of its kind.

Mr. Corwin stated:

“This will allow me to bring the perspective of domain registrants and others into the Committee’s consideration of trademark policy on the Internet Committee for the next two years!”

This year, more than 3,200 members applied to serve on INTA committees so its quite a honor for Mr. Corwin and a great opportunity for domain holder issues to be heard in the largest organization of trademark holders and their lawyers

Its a pretty amazing accomplishment for Phil and a great sounding board for domain holders to get their issues heard among the biggest brands in their world and their counsel.
As part of Mr. Corwin’s appoint he will be required to attend two meetings a year in addition to the ICANN meetings that Mr. Corwin already represents the ICA at each year.

Needless to say your contributions to the ICA are needed more than ever.

If you think the new gTLD’s and rules coming out of the program won’t effect you or your current domain holdings you should read the excellent piece on DirectNavigation.com today on how new gTLD rules, in this case the hundreds of domains that can’t be registered in new gTLD may come block to exist exact matching existing domains including .com domains.

As pointed out by the Phil Corwin of the Internet Commerce Association (ICA) The Coalition Against Domain Name Abuse (CADNA) has launched another offensive at the new gTLD program teaming up with the Council of Better Business Bureaus (BBB) to launch a month-long “‘Know Your Net’ gTLD public awareness campaign”

“Their goal is to enact amendments to the U.S. Anti-Cybersquatting Consumer Protection Act (ACPA) that would expand the law’s coverage beyond domain registrants by creating secondary liability for domain system intermediaries like registries and registrars, increase statutory damages penalties for all targets, and establish a ‘loser pays’ regime that favors deep-pocket corporate litigants. If such a proposal was enacted it would vastly increase the litigation leverage of trademark owners and tilt the playing field against defendants in a manner that would result in a high probability of domain shutdown without any final verdict from a court. In short, it’s a SOPA-like proposal grounded in trademark rather than copyright.”

“If businesses register as aggressively [as they did at the .XXX adult content TLD] in all of the new ‘open’ gTLDs, they will be forced to spend almost $10 billion….“Domain name registrations in the new gTLDs likely will be lower than they where (sic) in .XXX. But even a quarter of the .XXX number of registrations would cost about $2.4 billion

The ICA counters that CADNA is basically claiming that the total cost of defensive domain name registration will be double the total cost of the cost of owning every .com and .net in the registry.

According to the most recent April 2013 VeriSign Domain Name Industry Brief there were 252 million registered domains at the end of 2012, of which about half (121 million) were in .Com or .Net. The average annual registration fee for a .Com or .Net domain is less than $10 – but let’s go high and assume that the average annual fee for all .com and .net’s are $10, they the total amount spent on all .com and .net registrations is around $1.2 Billion.

How can defensive registrations cost brand holders twice as much money as the total registration cost of the new .com and .net registry combined?

Of course there are a lot of other issues with the CADNA numbers.

To use .XXX as an example which had a retail registration fee of $100 and a had a high degree of defensive registrations due to the nature of the subject matter, we at TheDomains.com would expect only .sucks which is only one of 1,400 or so new gTLD strings to generate the amount of defensive registrations that .XXX saw.…